Indian Council of World Affairs

Setting

One flashpoint in the South China Sea (SCS), amongst several others, is due to the Chinese assertiveness over its claims on the land features and waters in the areas of concern to the Philippines. This assertiveness is of a muscular kind which generates significant regional geopolitical ferment on account of the mutual defence treaty relationship between US and the Philippines (1951), current US Indo-Pacific strategy, and the growing strategic salience of the South China Sea in the larger global context. As an archipelagic country consisting of about 7641 islands, it also hosts major sea lanes in the western Pacific. The Philippines diplomacy, be it towards China, other regional disputants, the ASEAN members, or other major and middle powers, attracts more than normal attention for these reasons.

Moreover, the Philippines is one of the founding members of the ASEAN which, formed in 1967, coexisted with the now-defunct US-led anti-communist alliance called South-East Asia Treaty Organisation (SEATO); it continues to be an active member of ASEAN and its entire range of affiliate organisations aiming to provide the scaffolding of the security architecture in the region. This membership of the ‘ASEAN Community’, concomitant with its bilateral relationships with other Southeast Asian countries, imparts considerable strategic stakes to its involvement in the South China Sea affairs; the islands dotting the Sulu Sea connect with the territories of Indonesia and Malaysia where considerable small boat traffic takes place.

Philippines Claims in the South China Sea

The Philippines’ formal claims, and proclaimed so in a 1978  decree by President Marcos, on certain land features in the Spratlys islands group in the South China Sea, called the Kalayan (“Freedom” in Filipino) Group, have been made under the doctrine of Res nullius (ineffective sovereignty) and their geographical location within its UN Convention on the Law of the Sea (UNCLOS)-compliant maritime zones: the Marcos decree states that these are part of the Philippine continental margin and that these “areas do not legally belong to any state or nation but, by reason of history, indispensable need and effective occupation and control established in accordance with international law, must now be deemed to belong and be subject to the sovereignty of the Philippines.” These features, officially described as the ‘Regime of Islands’ under UNCLOS, are proclaimed to be under the administrative control of its Palawan province but located outside its UNCLOS-compliant baselines for an archipelagic country.

The Philippines government also has future plans for settling Filipino communities, developing tourism and other economic activities, and air and maritime links with these features; inevitably, these activities would require reclamation and expansion of these features as is being done by other claimant countries to reinforce their claims. The Philippines’ sovereignty claims have been contested by Vietnam, Malaysia, China and Taiwan who are also in occupation of other mutually contested land features in the Spratlys group; according to one calculation, Philippines occupies 11 features whilst China occupies 8, Taiwan 2, Vietnam 26, and Malaysia 6 whereas Brunei, although a “silent claimant”, does not occupy any feature.

Additionally, the People’s Republic of China and Taiwan claim “historic rights” expressed in the form of “nine dash lines” (“eleven dash lines” in the case of Taiwan; the distinctive characteristic of these Chinese “historic rights” claims are their – deliberately – ambiguous nature which are not compliant with the maritime zones as defined in UNCLOS and are selectively asserted as a lever to manipulate the bilateral relationship with another claimant country. The Philippines does not have any claims on the Paracel islands, another major island group in the South China Sea, although it does not accept the Chinese declaration of baselines covering the entire cluster as being non-UNCLOS compliant.

In contrast with other claimants, especially China which has carried out the most significant militarisation, the Philippines has also developed modest defensive capabilities for the protection of its interests there. It has built lighthouses, observation towers, structures for housing modest number of soldiers and civilians, and deployed reconnaissance flights and naval/coast guard patrols. At the Thitu (‘Pag-asa’ in Filipino) Island, where it has the most significant presence, its attempts to build a beach ramp to facilitate the refurbishment of its US-funded airstrip were – ultimately unsuccessfully – obstructed by the Chinese over a two-year period through the deployment of naval and coast guard ships and maritime militia vessels. Because of the exaggerated Chinese claims, the Filipino fishermen are not able to fish in their traditional fishing areas which are located within the UNCLOS-mandated exclusive economic zones (EEZs); arrests and prosecutions of Chinese fishermen, even inside the Philippines internal waters, invariably elicit Chinese government protests. The Philippines government is unable to exploit the proven hydrocarbon resources in the Reed Bank area falling within its EEZ but also within the Chinese “nine dash lines”; a Reuters story (19 May 2017) quotes Philippines President Duterte as stating that the Chinese President Xi Jinping had told him during a conversation about the Philippines right to drill for oil (at an unspecified place), “we’re friends … but if you force the issue, we go to war.” Philippines is conscious about Chinese approaches around its EEZ especially since the occupation of Mischief Reef (1995) which led subsequently for it to scuttle its naval ship BRP Sierra Madre at Second Thomas Shoal (1999) in its vicinity and to an ongoing stand-off as it continues to supply and rotate its soldiers on board. A strategically important contestation is over Scarborough Shoal, outside the Spratlys but within the Philippines EEZ and the Chinese “nine-dash lines”, where Philippines claims sovereignty through effective control but where its fishermen are being barred by Chinese maritime surveillance vessels since 2012 after Philippines barred Chinese fishermen in the lagoon; this stand-off continues whilst the US has described it as its strategic ‘red line’ which China must not cross amidst speculation that latter is planning to build an airstrip there.

ASEAN’s Changing Position on the South China Sea

Although ASEAN position on the South China Sea has been continuously expressed in the official documents, it is no longer as explicit as it was immediately in the wake of the Chinese capture of the Philippines-claimed Mischief Reef (1995) which was, then, its farthest reach. The ASEAN ministerial statement (March 1995) on ‘Recent Developments in the South China Sea’ made explicit references to that development. It subsequently led to the ASEAN and China signing, in 2002, of a non-binding Declaration on the Conduct of Parties in the South China Sea (DOC). Although the Declaration committed the parties to negotiate a binding Code of Conduct (COC), the Guidelines to Implement the DOC were agreed only in 2011 and currently the negotiations are on to conclude the COC. This extraordinary delay in the conclusion of a basic document of obligations by the two sides for the South China Sea has been due to the disarray within the ASEAN itself as a result of the divisive Chinese diplomacy; in July 2012, due to the opposition of the chair (Cambodia), a foreign ministerial statement could not be issued for the first time due to references about China in regard to Scarborough Shoal and the Vietnamese EEZ. The meandering COC negotiation process itself emblematizes a growing tilt in power balance in China’s favour with profound concerns amongst the non-littoral countries about the possibility of its eventual text being one-sided. Nevertheless, the imperatives of ASEAN’s own constraints, its own power asymmetry vis-a-vis China and perceived US ambiguity have also resulted in the Philippines neither abandoning the ASEAN nor the bilateral diplomatic tracks with China; in 2013, it filed without consultations with ASEAN for adjudication under UNCLOS on its dispute with China. Under a solicitous Philippines (Duterte) chairmanship of ASEAN, an unpublished ‘framework’ for COC was signed in Manila (August 2017) by the foreign ministers of the two sides. Although during the last 2-3 years individual ASEAN countries are making references to the UNCLOS Arbitral Panel ruling (2016) including rejection of Chinese claims and there is some strengthening of language on the SCS in ASEAN statements, the 2021 ASEAN Summit Chairman’s statement declares that the organisation “warmly welcomed the continuing improving cooperation between ASEAN and China” on this issue.

UNCLOS Arbitral Panel Award

The UNCLOS Arbitral Panel award (12 July, 2016) on the Philippines case against Chinese SCS claims was a significant victory for the Philippines and a major contribution to the international case law on the Law of the Sea. Although China did not participate in the arbitration proceedings, a decision which came in for some unusual domestic criticism, it stopped further reclamation of the Spratlys land features even though its militarisation continues unabated giving it enhanced regional power projection capabilities and extended loiter time for a range of its maritime platforms. It was welcomed in carefully phrased language by the large number of countries, including India, even as a reference to it was blocked by Cambodia (2016) in an ASEAN ministerial communiqué.

The key Arbitral Panel findings, in respect of the specific Philippines references to the Chinese activities, are as follows. The Chinese sovereign rights claim, rationalised as “historic rights” and represented by its ‘nine-dash lines’, were rejected. The Arbitral Panel fixed yardsticks for determination of maritime zones appertaining to land features, namely, the territorial waters, exclusive economic zones (EEZs) and continental shelf in accordance with UNCLOS; thus, any artificial measures to alter the land features do not yield expanded maritime zones. None of the land features in the Spratlys generates an EEZ which would be determined from the declared baselines of the littoral countries. The Spratlys islands cannot generate maritime zones collectively as a unit; although not brought before the Arbitral Panel, the Chinese declaration of baseline covering the entire Paracel islands group and maritime zones claimed thereon also has no legal validity. Whilst the Panel did not have jurisdiction over incidents of military stand-off between the Philippines and the Chinese law enforcement vessels over various land features as being in the nature of military action, its determination was that, based on Chinese statements about non-military nature of its activities on various land features, its jurisdiction on them is not negatively affected.

On specific land features referenced by the Philippines in its case before it, the Panel held that China was in breach of its UNCLOS obligations as it had aggravated the dispute between parties by activities such as building artificial island on Mischief Reef, irreparable harm to the coral reef ecosystem and permanent destruction of evidence of natural condition of the relevant features. On Scarborough Shoal, a feature blocked by China since 2012, China interfered with the traditional fishing rights of the Filipino fishermen by forcibly denying them access even as the Chinese fishermen also have traditional fishing rights there. The Mischief Reef, under Chinese occupation since 1995 and irreparably harmed by it, is part of the Philippines EEZ and continental shelf. China has interfered with the Philippines right of navigation and prevented location and resupply of Philippines personnel, endangering their health and well-being, as regards the Second Thomas Shoal which is within the Philippines EEZ. China has also interfered with the Philippines exploration of hydrocarbons in the Reed Bank area and has obstructed Filipino fishermen – and not preventing Chinese fishermen – from fishing within the Philippines EEZ at Mischief Reef and Second Thomas Shoal. Subi Reef, a low tide feature under Chinese occupation since 1988 and where extensive land reclamation for construction of landing strips for strategic bombers and a lighthouse, does not generate territorial sea, EEZ or continental shelf. Gaven Reef, McKennan Reef (including Hughes Reef), Johnson Reef, Cuerton Reef and Fiery Cross Reef, all being under Chinese occupation since 1988, do not generate EEZ or continental shelf where China has caused severe harm to the fragile ecosystem.

Philippines South China Sea Diplomacy and External Balancing

The Philippines diplomacy, both before and after the Arbitral award, in response to the Chinese strong-armed South China Sea policy has been conditioned by imperatives of China-Philippines economic relations, business links between key Filipino figures (including Filipino Chinese) and Chinese businessmen and perceptions of uncertainty of US support to Philippines’ interests in the South China Sea notwithstanding an enduring defence relationship and a security pact. It has not always acted in concert with the ASEAN’s. Its relations with China worsened during President Aquino’s administration (2010-16) due to his strong pro-US leanings and the anti-corruption drive against his predecessor, President Arroyo, whom he accused of having close links with the Chinese businessmen; it was during her time that an agreement for joint seismic exploration with China and, subsequently, Vietnam in the waters off Palawan in the Philippines EEZ fell apart due to allegations of corruption. In 2010, following US Secretary of State Clinton’s offer in Hanoi to “facilitate” initiatives on the South China Sea, President Aquino proposed an SCS ‘Zone of Peace, Freedom, Friendship and Cooperation’ which was openly boycotted by Laos and Cambodia. This initiative being a nonstarter, he brought the case against China in 2013 before the UNCLOS Arbitral Panel without consultation with his ASEAN partners and to their considerable chagrin.

His successor, President Duterte, began on a strong anti-US stance although his personal relations were better with President Trump than President Obama; he expressed disappointment with the lack of US support in protecting the country’s rights which were upheld by the Arbitral Panel. There was lack of faith in the US assurances that their bilateral defence treaty was also applicable to the Philippines interests in the South China Sea, including the land features. This explains the incumbent President’s ambivalent position, despite support of his military, on the current basing arrangements for the rotating US defence forces as part of its ‘pivot to Asia’. In his early years, he concentrated on improving economic relations with China and bilateral consultations on the maritime disputes, including a joint Coast Guard Committee, rather than pressing on with the Arbitral findings. The Chinese also committed US dollars 24 billion worth of infrastructure projects apart from other investments and ensured increased tourist traffic. He notified termination of the Visiting Forces Agreement (VFA) with the US which he was forced to withhold under his military’s pressure. However, his compulsion to lean on US for security increased with continuing Chinese aggressiveness and a furious public uproar, three years into office, following a Chinese militia vessel reportedly ramming Filipino boat in the Reed Bank area. The Chinese promised investment in infrastructure was a disappointing low at 5% as well.

From around 2019, the increased Chinese SCS muscularity, and especially during the following pandemic period, a commensurate US power projection has been evident. A clear US shift in stance on South China Sea was articulated in Secretary of State’s strongly worded statement ((13 July, 2020) where he backed Philippines claims regarding Scarborough Shoal, the Spratly Islands, Mischief Reef and Second Thomas Shoal in addition to those of Vietnam, Malaysia, Brunei, and Indonesia; basing himself on the Arbitral Panel finding, he rejected Chinese “nine dash lines”, stating that US stands with its South East Asian allies and partners in protecting their rights. Even as President Duterte tried a balancing act by praising Chinese assistance during the pandemic, a short stand-off (March 2021) took place with Chinese mass maritime militia deployments around the Philippines-claimed Whitsun Reef and surrounding islets; US State Department’s explicit confirmation of the applicability of the Mutual Defence Treaty to attacks on armed forces, public vessels or aircraft was accompanied by sailing into the South China Sea of US aircraft carrier and submarine and the Philippines deployment of fighter jets and naval patrols. At a subsequent meeting with US Defence Secretary (July 2021), President Duterte cancelled the decision to terminate the VFA; assurances were given to that effect by the US Secretary of State and National Security Adviser to their respective counterparts. In yet another stand-off (November 2021), three China Coast Guard patrol vessels used water cannon to prevent Philippine supply boats from replenishing and rotating the garrison on the scuttled BRP Sierra Madre (since 1999) which withdrew after a US Defence Department statement about invoking Article IV of the Mutual Defence Treaty; Chinese have been regularly preventing, since 1999, the replenishment and rotation of the Philippines garrison on board the ship. At the recent China-ASEAN virtual summit (November 2021) attended by President Xi Jinping, President Duterte issued an unusual warning to China and held up the Arbitral Panel award as the way forward. As the Philippines and the US further strengthen their defence cooperation through sale of weapons, information sharing and defence planning, including maritime cooperation, their interoperability is being enhanced through their regular Balikatan Exercises which are aimed at joint amphibious operations. For the Philippines leadership, one consideration is the reciprocal application of the Mutual Defence Treaty requiring their armed forces to also come to the “defence” of the US vessels in the Pacific should a clash occur between the US and China.

As part of its external balancing, it is developing a strong defence relationship with Japan through supply of defence equipment to boost patrols in the South China Sea, joint exercises for “a free and open Indo-Pacific”, and discussions on a mutual defence treaty. From South Korea, it is receiving naval and air force platforms and other forms of military hardware, some of them being gifts. With Australia, it has concluded (2012) a visiting forces agreement and purchased landing craft at “friendship prices”; Australia has also sent their special forces for participation in the joint Philippines-US Balikatan Exercises which China is very sensitive about.

It bears mentioning that no country takes a position on the sovereignty claims on the SCS land features by the littorals, including the Philippines. There are no decisive steps amongst the claimant littorals to negotiate, by excluding China, their own conflicting claims nor the nature of SCS land features for determining the appurtenant maritime zones. In spheres outside of the existing the SCS disputes, maritime collaboration amongst ASEAN countries with the involvement of the Philippines does continue: Philippines and Malaysia collaborate in joint conservation measures in the Sulu Sea despite their continuing territorial dispute over Sabah (formerly North Borneo) and, along with Indonesia, they continue joint patrols there against piracy and extremist militant groups, such as Abu Sayyaf. Philippines has settled the maritime boundary with Indonesia which lies mainly in the Sulawesi Sea. Along with Brunei, Malaysia, and Indonesia, the Philippines is a member of the East ASEAN Growth Triangle.

Concluding Remarks

The well-known commentator, Richard Heydarian, quotes Foreign Minister Locsin as saying, at the height of the Whitsun Reef stand-off,  that the foreign office would be “firing off” diplomatic protests “every day until the last”: the geopolitical reality in the region constrains the Philippines to conduct a careful, balancing policy to protect its interests. It bears keeping in mind that the Chinese assertiveness, aiming to alter the balance of power in these waters, is unrelated to its larger strategy to diminish its “containment”. Increased US presence is timed to reinforce the pushback from the littoral ‘middle powers’, including the Philippines, against Chinese assertiveness; other extra-regional powers, like Japan and Australia, are strengthening these recent trends. Apart from its larger global ramifications, this geopolitical turmoil driven by an action-reaction cycle can only have negative impact on regional and national capacities precisely at a time when the potentially destabilising challenges from the pandemic, acute global economic uncertainty, and climate change are intensifying.

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*Amb. Yogendra Kumar, is a  former ambassador to the Philippines.
The Views expressed are personal.

*The Author can be reached at:  mr_yogendra_kumar[at]hotmail[dot]com